Hoch v Hoch

Case [2020] QSC 365

SUPREME COURT OF QUEENSLAND

CITATION:

Hoch v Hoch [2020] QSC 365

PARTIES:

IAN RICHARD HOCH

(applicant)

v
ANDREW GRANT HOCH

(respondent)

FILE NO/S:

BS No 11084 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

17 and 19 November 2020

JUDGE:

Bradley J

ORDER:

The Order of the Court is that:

1. Pursuant to s 38(5) of the Property Law Act 1974 (Qld) (the “Act”), the scheme of partition of Lot 2 on Crown Plan BE87, Title Reference 51065102 (the “Land”) prepared by Joanne Emily Dunn and Benjamin James John Waters as trustees of the interests of Ian Richard Hoch (the “applicant) and Andrew Grant Hoch (the “respondent”) in the Land is varied so that the Land is to be partitioned in accordance with proposed Lots 11 and 12 (and proposed Easement A in Lot 12) on the survey plan prepared by VSB Surveys Pty Ltd.

2. Pursuant to s 43(1) of the Act, in respect of the receipt by the respondent of more than his proportionate share of the Land under the scheme of partition (as varied by this Order), the respondent is liable to account to the applicant for $63,145.

3. Pursuant to s 42 of the Act, the respondent is entitled to an allowance of $9,517 and the applicant is liable to pay that allowance to the respondent.

CATCHWORDS:

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – OTHER MATTERS – where real property owned by the applicant and respondent as tenants in common in equal shares is vested in trustees on the statutory trust for partition – where the trustees have prepared a scheme of partition and served notice of the scheme on the applicant and respondent – where the scheme of partition was prepared in accordance with a “hypothetical valuation exercise” that assumed the property was “fully developed and consistent with respect to land clearing, pasture development, waters and fencing” – where under the scheme of partition, the applicant would receive a lot worth $2 million and the respondent would receive a lot worth $3 million – where the applicant has applied for a variation of the scheme of partition – whether the scheme of partition produces, as nearly as possible, an equal division of the property

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – IMPROVEMENTS – where the applicant has applied to vary a scheme of partition in respect of real property he and the respondent own as tenants in common in equal shares – where the applicant and respondent each claim to have increased the value of the property through improvements and repairs – whether the applicant and/or the respondent is entitled to an allowance to reflect the value of the improvements and repairs they claim they have made

Property Law Act 1974 (Qld), s 38, s 42, s 43

Brickwood v Young (1905) 2 CLR 387,…

Continue reading Hoch v Hoch

Sign in free to access the full text

Details
AGLC
Hoch v Hoch [2020] QSC 365
Case
[2020] QSC 365
Decision Date

CaseChat Overview and Summary

The parties in this case are Ian Hoch and Andrew Grant Hoch, who own land as tenants in common in equal shares. The dispute revolves around a proposed scheme of partition for the sale or division of the property, which was prepared by trustees. Ian Hoch has applied for a variation of the scheme, arguing that it does not result in an equal division of the property. Additionally, both parties claim to have made improvements to the property and seek an allowance to reflect the value of these improvements.

The legal issues before the court were whether the scheme of partition produced, as nearly as possible, an equal division of the property and whether the applicant and/or the respondent were entitled to an allowance for the value of improvements and repairs they claimed to have made. The court had to consider the evidence presented by both parties and the expert opinions of three registered valuers.

The court found that the proposed scheme of partition did not result in an equal division of the property. It varied the scheme to partition the land in accordance with proposed Lots 11 and 12. The court also found that Ian Hoch was entitled to an allowance of $42,500 for the value of improvements he made to the property, and Andrew Hoch was entitled to an allowance of $9,517 for the value of improvements he made. However, the court found no evidence to support the other claims for improvements, and therefore, no allowance was granted for those claims.

The court made orders varying the scheme of partition, requiring the respondent to account to the applicant for $63,145, and requiring the applicant to pay the respondent an allowance of $9,517. The court will hear the parties regarding any other orders, including costs.

Orders

Orders of the court

The Order of the Court is that:

1. Pursuant to s 38(5) of the Property Law Act 1974 (Qld) (the “Act”), the scheme of partition of Lot 2 on Crown Plan BE87, Title Reference 51065102 (the “Land”) prepared by Joanne Emily Dunn and Benjamin James John Waters as trustees of the interests of Ian Richard Hoch (the “applicant) and Andrew Grant Hoch (the “respondent”) in the Land is varied so that the Land is to be partitioned in accordance with proposed Lots 11 and 12 (and proposed Easement A in Lot 12) on the survey plan prepared by VSB Surveys Pty Ltd.

2. Pursuant to s 43(1) of the Act, in respect of the receipt by the respondent of more than his proportionate share of the Land under the scheme of partition (as varied by this Order), the respondent is liable to account to the applicant for $63,145.

3. Pursuant to s 42 of the Act, the respondent is entitled to an allowance of $9,517 and the applicant is liable to pay that allowance to the respondent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In affidavits read at the hearing, Andrew Hoch swore he had cleared and continued to clear land on the western side of the property. However, when cross-examined, he confirmed that since 1993 he had cleared no more than 50 acres (about 20 hectares) of the property, and perhaps less.The evidence about the proposed scheme Mr Cavanagh is the originator of Option 2 on which the proposed scheme is based. His report appears to have been the basis for the proposed Lots 1 and 2. The instructions the trustees gave to Mr Cavanagh about Option 2 are set out at [43] above. His explanation of what he did to create Option 2 is follows:“Under Option 2, I have identified a proposed line of partition by adopting a hypothetical valuation exercise. The exercise assumes the whole of ‘Kerand’ is fully developed and consistent with respect to land clearing, pasture development, waters and fencing. This assumption allows the land to be apportioned into equal parts by value based upon the underlying land type and free of any issues surrounding improvements which have or have not been made to the land.” Mr Cavanagh “valued” the whole of the property “assuming it were fully developed” at $6,300,000 as at 1 April 2018. The court had the benefit of expert evidence from three registered valuers: Mr Lyons, Mr Cavanagh and Mr Dyer.[26] Each provided an opinion about the current market value of the property and its fixed improvements based on freehold tenure.[27][26]Mr Dyer’s written report was co-authored by Will McLay, another registered valuer. Mr Dyer was called to give oral evidence about the matters in issue. McLay was not. It is convenient to refer to the views expressed in the report as being those of Mr Dyer. [27]This final part of the instruction was necessary, in the case of Mr Lyons, because when he was first engaged the property had not yet been converted to freehold. As noted above, this did not occur until 10 November 2016. Subject to the qualifications and conditions set out in their respective reports, the opinions of the valuers are summarised in the table below. At the hearing, no valuer disputed another’s assessment of value as being correct on the relevant valuation date and conditions. Mr Dyer and Mr Lyons conferred shortly before the hearing. Neither Mr Dyer nor Mr Lyons attributed the changes in value between the various valuation dates to any particular activity or improvement on the property. Mr Cavanagh also valued each of the proposed Lots 1 and 2 in Option 2. He assessed the value of Lot 1 as $2 million and Lot 2 as $3 million, each on 1 April 2018. Neither Mr Lyons nor Mr Dyer raised any issue about the values assessed by Mr Cavanagh for the proposed Lots 1 and 2. This decision proceeds on the basis that the assessed values for the property and of the proposed Lots at their relevant valuation dates are common ground and that the progressive increases in value of the property across the three valuation dates are due to a general increase in the market value of such land over time. The annual rate of increase is about 8%.Should the proposed scheme be varied?

Decision

Reasons for decision

No evidence was given to explain these other items. None of the valuers was asked whether he attributed any increase in the value of the property as a whole to any of them. In the circumstances, the court cannot order the payment of any allowance for any contribution Andrew Hoch made to the overall value of the property by reason of the costs he incurred on any of these items.Conclusion on allowances Of the $320,000 claimed, the allowance due to Ian Hoch for the value of improvements he effected to the property that increased its value is $42,500, calculated as follows. Of the $345,709.12 claimed, the sum due to Andrew Hoch is $52,018, calculated as follows, and rounding the cents to whole dollars. The net position is that Andrew Hoch is due an allowance of $9,517 from Ian Hoch that he is entitled to recover in this proceeding.Final disposition For the reasons expressed above, orders should be made to the following effect:(a)Pursuant to s 38(5) of the Act, the scheme of partition of the property prepared by the trustees is varied so that the property is to be partitioned in accordance with proposed Lots 11 and 12 (and proposed Easement A in Lot 12) on the survey plan prepared by VSB Surveys Pty Ltd;(b)Pursuant to s 43(1) of the Act, in respect of the receipt by Andrew Hoch of more than his proportionate share of the property under the scheme of partition (as varied by this Order), Andrew Hoch is liable to account to Ian Hoch for $63,145; and(c)Pursuant to s 42 of the Act, Andrew Hoch is entitled to an allowance of $9,517 and Ian Hoch is liable to pay that allowance to Andrew Hoch. I will hear the parties as to any other orders that should be made, including as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.